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Burden of proof

The Wellington women who distributed leaflets containing suppressed information on the Louise Nicholas case did so because they believed suppression orders in such cases were the "worst kind of injustice". In that, they are wrong. In every court in the democratic world it is the conviction of the innocent that is rightly deemed the worst kind of injustice.

And it is for that reason we must jealously guard the right of defendants to a fair trial. It is precisely in the heat of powerful public emotion - talkback radio ran hot on the issue last week - that those protections and safeguards count most. We do not improve the position of complainants by attacking defendants' rights. Nor by following majority opinion. After all, until recently the majority accepted the legality of rape within marriage.

But although it is right that an onerous burden of proof should be shouldered by the state, and the rules of evidence uphold that, one of the most important tenets of our justice system remains an open trial process. And although the Wellington women's conduct can't be condoned, their actions may well signal that it is time to hold a debate on whether free speech is too easily yielded to fair-trial values in New Zealand. Indeed, what may force this issue is the availability now of such information on the internet.

Why is it that we do not trust juries to have the judgment to distinguish the evidence in court from what they may hear elsewhere about a case? Juries are already warned about prejudicial information and beliefs. The Court of Appeal has itself pointed out in cases involving gang members that "undoubtedly there is widespread prejudice against them, yet juries still acquit or fail to agree on occasions, indicating that, when confronted with an actual case, they can be expected to carry out their task responsibly in the light of the evidence".

But there remains enormous inconsistency in the granting of suppression orders. Professor Philip Stenning, recent director of the Institute of Criminology at Victoria University, believes that New Zealand has the most stringent name-suppression law in the common law world. Indeed, there is not just name suppression but fact suppression, issue suppression and sometimes even case suppression. If we believe all this suppression is necessary in the interests of justice, we are in danger of putting ourselves in the ludicrous position of saying that in the United States - where first-amendment freedoms forbid such bans - there can be no fair trials.

Scott Optican, associate professor of law at Auckland University, advocates the use of voir dire when selecting juries - a preliminary questioning of jurors - to screen out those with preconceptions and prejudices. Instead, he says, we have a system "that treats the public like idiots". To ring-fence the minds of 12 jurors, we suppress the rights to information of four million New Zealanders. Others, however, maintain that we are simply confusing what is in the public interest with what is of public interest.

These are not simple issues. Witness the case of Peter Howse. When a 16-year-old rape complainant accidentally let slip on the stand in Wellington that Howse had just been released from prison, a mistrial was declared. At the new trial, this vulnerable young woman was humiliated on the stand; called a liar; had her sanity questioned to a devastating degree. Howse was acquitted and her mother disowned her for lying. DNA tests later proved that it was indeed Howse's semen. But Howse - a paroled murderer who had killed a young woman - had by then walked free and gone on to sexually attack three other young women.

Would it - should it - have made a difference had the jury known his past? Would knowing more information in such cases increase the pressure for options such as a "not proven" verdict? Or would that simply jeopardise an innocent defendant's right to clear his name?

We cannot just avoid such issues. If rape complainants do not have enough confidence in the system to come forward, their access to justice is denied. Perpetrators will come to believe that they can act with impunity. And that ultimately threatens the criminal justice system itself. These questions must be debated. And openly.